Francisco and Mootness, Take 2

I know Sandefur has already written a response to DI flak Michael Francisco’s latest attempt to salvage his accusations about the new Dover board, but since his post was in response to my criticism as well, I also have replied to it in somewhat more detail. Sandefur has it absolutely right when he says that Francisco is just posturing, flashing his cufflinks at us and throwing out a few irrelevant precedents. In fact, he’s in the very precarious position of arguing that appeals court precedents from other judicial districts, which are not binding in any other district and where the legal and factual circumstances are dramatically different than the Dover case, are good precedents; but that Supreme Court precedents where the legal and factual circumstances are identical in all relevant ways are “clearly distinct” from Dover. It’s quite a disingenuous performance. If he gave that answer in a paper at Cornell Law School, where he is a student, I can’t imagine he would get a passing grade on it. But hey, this is an exercise in propaganda, not truth seeking.